Letwin Sigauke N.O. v Probrands (Pvt) Ltd & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/64/2020
HARARE, 3 FEBRUARY, 2020
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/64/2020

HARARE, 3 FEBRUARY, 2020		               CASE NO. LC/H/LRA/175/19

AND 28 FEBRUARY, 2020

LETWIN SIGAUKE N.O.							Applicant

PROBRANDS (PVT) LTD							1st Respondent

GEORGE KAPENZI							2nd Respondent

Before The Honorable G Musariri, Judge:

For Applicant:			Ms L. Sigauke, Applicant

For 1st Respondent:			Mr N. Chikowore, Attorney

For 2nd Respondent:			Mr G. Kapenzi, Respondent

MUSARIRI J:

On the 1st April 2019 at Harare Applicant, in her capacity as a Labour Officer, issued a ruling. She ordered the 1st Respondent (employer) to pay the 2nd Respondent (employee) an amount of $3 382-50 in respect of gratuity upon termination of employment. Apparently the employer failed to comply with the ruling. Thereupon Applicant applied to this Court for the confirmation of her ruling in terms of section 93 (5a) of the Labour Act Chapter 28:01 (hereafter called the Act). The employee supported the application. The employer opposed the application.

The employer’s case is captured in the Heads of Argument filed by their attorneys. The case is two-fold as follows,

“8. 1st Respondent is opposed to the confirmation of the ruling on the following grounds.

(I)	The Labour Officer erred in law in holding that 2nd Respondent is entitled to gratuity in terms of Statutory Instrument 34 of 2012,… 2nd Respondent was a managerial employee. The said CBA does not apply to managerial employees.

(II)	The Labour Officer fails to give reasons for his findings. This constitutes gross irregularity. In particular, 1st Respondent contended that S.I 34 of 2012 was inapplicable, on account of 2nd Respondent having been a managerial employee. Although this contention is not challenged by 2nd Respondent, it was disregarded by the labour officer. Critically no reasons are given for its disregard”.

The relevant Statutory Instrument No. 34 of 2012 is called the Collective Bargaining Agreement: Food and Applied Industries (Food) (Processing Industry Sector) [hereafter called the CBA].

Section 2(1) of the CBA provides that;

“This agreement shall apply to-

(b) all employees in the food processing industry except managerial employees as defined in the Labour Act (Chapter 28:01).”

The said Labour Act in its section 2 defines a managerial employee” as

“any employee who by virtue of his contract of employment or his seniority in an organization, may be required or permitted to hire, transfer, promote, suspend, layoff, dismiss, reward, discipline or adjudge the grievances of other employees”.

Therefore the main issue in casu was whether the employee was a managerial employee. If he was then the CBA does not apply to him. A copy of the employee’s

pay-slip for September 2015 is filed of record. It records his occupation as “Sales Representative”. Nothing else therein bears upon the status of the employee. Also filed of record is a document titled “Advanced Paterson Job Description Form”. It was signed by the parties on the 30th June 2010. It indicates the employee’s occupation as “Merchandising Supervisor”. A capsule description of the job reads thus,

“Supervises the merchandisers by doing trade visits and maintain shelf space in the outlet by increasing and negotiate platforms; end caps to enhance sales and have big market share on space.

Product developer office- (identify) movable and non-movable products by giving information to my sales manager”.

A comparison of the definition in the Act and the Paterson description is called for. I consider that the two are as different as chalk and cheese. The description does not have the functions of a manager as described. The only task that might be considered “managerial” is the supervising of merchandisers. The definition sets out several managerial tasks most, if not all, of which are absent in the description. Further and in any event “Supervisors” are normally just senior employees rather than managerial employees. The employer sought to get over this hurdle by pointing out that the employee was paid more than the employees graded according to the CBA. He further stated that no levies from the employee’s wages were made to the relevant NEC as done for other graded employees. I consider these arguments as devoid of merit. The wages set by the CBA are minima. An employer is at liberty to pay more than the minimums. That an employer does not pay the said levies is simply evidence that the employer is violating the CBA. It cannot be used as evidence of an employee’s legal status.

In his award, the Arbitrator did not deal with the question whether or not the employee was a managerial employee. That omission was an irregularity considering that the employer had raised the issue. The employer also stated that the employee resigned of his own accord. However the CBA provides for gratuity “on termination of such employment of such employment, irrespective of the circumstances of such termination”, Therefore both the points raised by the employer lack merit. The employee was entitled to the gratuity which the Arbitrator awarded. Thus it would be inequitable to set aside the award on technical grounds.

WHEREFORE IT IS ORDERED THAT;

1.	The application for confirmation of ruling be and is hereby granted;

2.	The 1st Respondent shall pay the 2nd Respondent an amount of

$3, 382-50 in respect of unpaid gratuity; and

3.	The 1st Respondent shall pay costs in the sum $73-00.

G. MUSARIRI

J-U-D-G-E